My dad owns a small restaurant. Before he opened his doors for business, he had to have health inspectors, and building code inspectors ensure that the place was operational – that people would not get sick from faulty food storage units, that the ceiling would not cave in on the patrons, that kind of thing. While often frustratingly bureaucratic and slow, he accepted it because it’s a necessary step when your work has the potential to harm other people. Responsible business owners really don’t want people to get sick or injured because of their business.
Phoenix-based Southern Copper Corporation is one of the largest copper producers in the world. Extractive practices (like copper mining) have a high risk of very serious harms. Southern Copper states publicly that it is committed to similar goals of responsible business – “to permanently enforce the best environmental conservation and preservation practices,” and “to promote society’s sustainable development.” Surely, then, the company would see safety permits and mechanisms as necessary pieces to have in place in order to meet its very own goals, and understand the absolute need to ensure that the proper safety protocols are followed and the appropriate safety mechanisms are installed before actually running a mine.
A Southern Copper subsidiary runs the Buenavista del Cobre copper mine in Sonora, Mexico. It began operating the mine before construction was complete, without all of its permits, and before safety mechanisms and installations had been put in place. Unsurprisingly, it didn’t end well. On August 6, 2014, 40 million liters of toxic mining waste poured into the Bacánuchi and Sonora Rivers, creating what many, including Mexico’s Environment Minister, consider to be Mexico’s “worst environmental disaster in recent history.”
These rivers were the primary source of water for the lives and livelihoods of over 24,000 people in seven different counties. This is their drinking water, their farming water, the water that feeds both their animals and their crops. All contaminated. The contamination covered almost 200 miles of river. A subsequent hurricane only exacerbated the problem, spreading the toxic water further into the fields.
OK, so Southern Copper slipped on its principles. But since one of its core values is “to accept the consequence for our actions or failure to act at the company and its surrounding environment,” the responsible reaction would be to immediately take action to remedy this disaster. But instead, what unfolded was one responsibility-dodging action after another.
First, the company did not inform the authorities until the next day, and did not inform the affected communities until the day after that. Then it denied the cause, blaming the contamination on heavy rains. Next, it tried to claim that the toxins were not actually toxic. Eventually, Buenavista del Cobre entered into an agreement with the government, promising to set up a trust to compensate for damages. However, the details around the trust are still murky, and after almost two years, the impacted people continue to suffer.
Faced with this situation, affected communities in Mexico – assisted by the Project on Organizing, Development, Education, and Research (PODER) – have filed a number of legal actions in Mexico. To help them, ERI and the Law Office of Lynn Coyle PLLC have now filed a Foreign Legal Assistance Action (FLA) in federal court in Arizona. The goal of the FLA action is to get information from Southern Copper about its subsidiary’s mine operations. As the parent company, Southern Copper very likely has information about what led this disaster to happen, which would be useful in the Mexican legal actions.
We have spoken previously about the potential that FLAs, filed under federal statute 28 U.S.C. § 1782, can bring. This type of action provides a unique opportunity for victims to access documents and get testimony that can help their case in their home country. Particularly in cases of corporate impunity for human and environmental rights violations, at least some of that information often can be obtained here in the U.S.
Companies tend to play hot potato with responsibility in a constant effort to deflect any from falling on themselves. Using section 1782 this way serves to counter that by demonstrating that “people and companies in the U.S. can’t hide information about the wrongs they commit abroad.” This action will ensure that Southern Copper is forthcoming about its knowledge of the very foreseeable risks, and its actions – or inaction – leading up to the disaster.
What makes this FLA action unique for us is that it is the first public interest FLA where ERI has not taken the leading role. ERI has been using the FLA strategy for a little over two years, with good success. We previously filed three Foreign Legal Assistance actions, to assist cases arising out of in Tanzania, Peru, and Nigeria: the court ordered the requested discovery in two cases; the company came to an agreement to provide documents in the other.
While ERI continues to use this strategy, the long-term plan has always been to make it available to as many people as possible. To do that, ERI is developing a Foreign Legal Assistance Network (FLAN), a network of pro bono counsel in the U.S. who will be able to provide additional resources to help lawyers and communities in other countries file these actions.
The FLA filed this week is the first example of this Network. While ERI stands with the impacted communities in Mexico, Chris Benoit from the Law Office of Lynn Coyle PLLC – who has been working directly with PODER – has been the lead on this action.
We are excited about this first partnership in our FLA Network. It not only gives us the opportunity to work with other impactful organizations like PODER, but also to expand the network’s reach. Because until big corporations start actually taking seriously these basic concepts of acting responsibly and accepting the consequences for harming others, ERI and our partners and allies will be there to take them to task.